Lawyer bristles at criticism of concussion settlement

Posted by Mike Florio on September 2, 2013, 9:11 AM EDT

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The prevailing reaction to the news that the NFL has settled the concussion lawsuits for a package that amounts to $3.9 million per team per year for three years and $703,000 per team per year for 17 years thereafter has been, “That’s all?”

The lawyers who brokered the deal have heard the criticism. And, like most lawyers and other humans (yes, contrary to public belief lawyers are human), they don’t like it when their work is publicly criticized.

“I would love to debate any sane person about this settlement,’’ Chris Seeger, one of the lead attorneys in the litigation, tells Peter King of TheMMQB.com. “We plotted how much these players who need the money now and in the future, and who are eligible for it, would need, and we got it. We got it now, not 10 years from now. I’ve heard the criticism. A pittance … chump change. That is stupidity. We got exactly what we needed for the players and the families who need it most.”

Still, in the grand scheme of the NFL’s overall wealth, it is a pittance. And it’s chump change.

The concussion litigation was trumpeted by many (to the sure delight of lawyers like Seeger) as an existential threat to the industry. Instead, 32 billion-dollar businesses will pay what amounts to (including attorneys’ fees) $30 million per team, spread over two decades. That so low in light of the grave danger the league supposedly faced that the owners may want to commemorate the occasion by purchasing personalized ski masks.

Seeger is doing much more than yielding to the temptation to bristle in the face of criticism. He now needs to sell the settlement to his clients. Given that the group of plaintiffs has now morphed into all retired players (even those who never sued), some of the 4,500 clients may feel like they were sold out.

Former players were aggressively lured to the party, for leverage purposes. The bigger the total amount of players suing, the greater the pressure on the NFL, especially in the court of public opinion.

“[M]ost of us are having symptoms associated with having concussions/ head trauma such as short term memory loss, headaches, anxiety, mood swings, change in personality, depression, and sleep problems,” former NFL quarterback and former ESPN analyst Sean Salisbury wrote in an email aimed at getting more players to join the effort. “If you are having ANY of these side effects, like me, then I urge you to join the suit. There is strength in numbers!”

There indeed was strength in numbers. Enough strength to get $765 million. But the only thing any player definitely will receive is a free medical exam — unless they can “present medical evidence of severe cognitive impairment, dementia, Alzheimer’s, ALS.”

“Severe cognitive impairment” implies something big. Players who have only a handful of the symptoms Salisbury described likely don’t have a “severe cognitive impairment,” and thus won’t be able to participate in the $675 million fund.

Of course, retired players who don’t currently have severe cognitive impairment can try to obtain compensation if they develop one later. They’ll actually receive compensation only if there’s any money left in the $675 million fund, which can be enhanced by a one-time payment from the NFL of up to $37.5 million.

And so players who believe they have concussion-related symptoms but who aren’t sure if they have “severe cognitive impairment” now have to decide whether to roll the dice on getting payment from the $675 million compensation fund, or roll the dice on ongoing litigation. They’ll now be told by the lawyers who obtained the settlement about the weaknesses of the case — something lawyers rarely talk about when aggressively lining up a “strength in numbers” army of clients.

It’s a problem that arises frequently for lawyers. In some contexts, they must do everything they can to make a case look great. In other contexts, they must do everything they can to make a case look not so great, in order to sell a settlement. In this case, it won’t be quite as easy for the lawyers to harmonize the two.

Lawyers like Seeger will have an easy time selling the settlement to players like Kevin Turner, whose ALS qualifies him for a maximum payout of $4 million. Lawyers like Seeger will have a hard time selling it to players who don’t currently have severe cognitive impairment, who stand to potentially get nothing more than a free cognitive exam under the settlement, who don’t understand why the case suddenly became so weak that it had to be settled for $30 million per team paid out over 20 years, and who will feel that they ultimately were used by the lawyers to help them score a payday for themselves that has been estimated by many at $200 million.

Since when did settlement amounts become predicated on the revenue generated by the entity being sued? Auto manufacturers, cigarette manufacturers, government entities, and other corporations have being sued in the past and those suits are normally based on the cost of indemnification of the injured party. Just because a company generates a certain amount of revenue doesn’t automatically mean damages must equate to a specific percentage of those revenues.

this settlement should be open ended with the nfl being forced to take care of all the players it so obviously failed to tell of their findings. all players who have played through 2012 should be able to get the help they need from the nfl no matter when they need it. from this day forward be forewarned there is nothing there for players coming in from this time forward. the really ugly truth here is the nfl was not forced to admit they knew the players were suffering life long disabling concussions and didn’t have any compassion, and didn’t say look this can ruin your future instead they chose to tell them look at all the money you are making.

Neftali Ramos says:Sep 2, 2013 10:30 AM

Their job was to compensation for their clients not rob the NFL blind because they’re a multibillion dollar corporation. I think the lawyers accomplished the job.

After all of the talk about how the pending litigation over concussions would ruin the NFL the settlement seems small. However, it now seems more likely that the threat to the league was overblown. The point of the litigation should always have been to take care of those who need care and not as a way to soak the league for more money. Even if the players had received 2 billion over the same period of time it would have only amounted to little more than 75 million per team.

ttommytom says:Sep 2, 2013 11:25 AM

Just like the World Trade Center lawsuit.

The INCREDIBLY INEPT lawyers got rich and the sick got chump change.

chipdip5 says:Sep 2, 2013 11:57 AM

Really – A lawsuit predicated on the idea that the players did not know getting hit on the head could cause damage. Never heard of Muhammad Ali? Don’t know to wipe after using the bathroom.

Just pathetic. Why aren’t they suing their own Union? Those folks at the Union weren’t interested. The players this year are being paid about 130 million per team – and they are paid whether the owners make money or not. Why aren’t they suing the players, they have money. How much of the owner’s money are you COMMUNISTS going to give away.

The Owners had a PR problem. If these issues weren’t covered by the Labor Agreement then it should be a Worker’s Comp issue.

The players are lucky to be getting this CHARITY. The Owners could have tied this up for years while these guys died. Under the settlement only the people with real issues might get some money. The lawyers did a fine job.

Despite what you’ve read or may have been told, there is no settled medical science that proves playing football causes dementia, causes Parkinson’s, causes Alzheimer’s and suicide.

If there was, the settlement wouldn’t be $765 million, it would be in the trillions, and they would be banning the game. If the game of football actually caused all the things that they claim it does, that game would be banned, and the penalties paid to players that played it in years past who were not told that they could get dementia – Alzheimer’s, Parkinson’s – would be in the trillions.

But because there isn’t such conclusive factual proof, there is this settlement.

FinFan68 says:Sep 2, 2013 1:23 PM

garyhd01 says:
Sep 2, 2013 10:25 AM
this settlement should be open ended with the nfl being forced to take care of all the players it so obviously failed to tell of their findings.
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What are you talking about? Medical people have only recently begun to understand some of the issues with concussions. The NFL does not have a monopoly on “common sense” which is the only reason the league AND players “should have known” about potential long-term damage. If you are referring to the studies back in the 90’s then why are you conveniently forgetting the union was involved as well (but they were conveniently not named in the suits)–NFLPA involvement in and of itself is player notification. If the NFLPA failed to adequately inform their membership, why are you angry at the league?

@floratiotime Those “dirtbag” lawyers did get paid a bundle. Could you convince a company to give away nearly a billion dollars? Yes lawyers get paid well, but that’s because they offer a valuable service.
The lawyers chasing accident scenes are the ones who deserve your criticism, not these guys.